No Negligence? No Liability!

28 January 2021

The New South Wales Court of Appeal has confirmed a commercial occupier is not liable for injuries suffered by a patron who slips and falls over a water spillage if a sufficient cleaning system is implemented.

In Issue

  • Whether an occupier of a shopping centre was liable for a patron slipping and falling on a water spillage where there was no negligence on the part of the operative cleaning system or floor unsuitability.
  • Subject to the allegation of unsuitable flooring, who bears the onus of providing evidence of the burden of taking precautions to avoid similar risks of harm?

The background

On 29 September 2016, Lisa Carnemolla, a 40 year old woman whose disabilities required her to be represented by a tutor (her mother), slipped and fell on a terrazzo tile floor in the corridor outside the bathrooms of a shopping centre occupied and managed by Arcadia Funds Management Limited (Arcadia).

Within 2 minutes of Ms Carnemolla’s fall, the cleaning supervisor arrived at the scene to find Ms Carnemolla sitting against the wall of the corridor and was told by Ms Carnemolla that she slipped on a water spillage. The cleaning supervisor inspected the incident location but was unable to locate any wet surface in the surrounding area. The last cleaning rotation prior to the incident occurred around 12 minutes beforehand.

Ms Carnemolla commenced proceedings against Arcadia in the District Court seeking damages for negligence.

The decision at trial

At trial, Ms Carnemolla did not challenge the adequacy of the cleaning services and conceded that inspections every 15 minutes for monitoring spills was an adequate system of cleaning for common areas. In addition, Ms Carnemolla obtained expert evidence from Ian Burn, engineer. Mr Burn is an expert witness who is regularly engaged by plaintiffs in slip and fall claims. Mr Burn conceded during cross examination that the terrazzo tile floor was a universal tile choice for common areas in shopping centres and appropriate if kept clean and dry.

There was no oral evidence that water was present on the floor which caused Ms Carnemolla to slip and fall. Whilst the contemporaneous incident report recorded that Ms Carnemolla stated she slipped on water, it also recorded that the floor was dry when inspected post incident.

Gibson DCJ found that Ms Carnemolla had failed to establish liability and the claim was dismissed. Ms Carnemolla appealed.

The Decision on appeal

The appeal was dismissed.

The Court of Appeal found that Mr Burn conceded that the terrazzo floor was an appropriate surface flooring and accepted the operative cleaning system was adequate and there were a number of issues which flowed from this concession. Against this background, even if water had been present on the floor, there could be no finding of liability against Arcadia in the absence of any evidence to establish the inadequacy of the cleaning system.

Ms Carnemolla failed to demonstrate that the cleaning system itself was not appropriate and adequate as a means of discharging Arcadia’s duty of care. The Court of Appeal found that the trial judge was entitled to find that there was no water on the floor, based upon the available evidence. Even if there had been water on the floor, the trial judge was also entitled to reject the claim on the basis there was no evidence of a failure of the cleaning system and therefore there was no breach of duty on the part of Arcadia.

Had the suitability of the terrazzo floor been challenged, careful consideration would need to have been given to the cost of replacing the terrazzo floors throughout the shopping centre, for which there was no evidence. The fact that terrazzo tiles are used almost ubiquitously in shopping centres (something also conceded by Mr Burn) would also count against such a submission being made.

Implications for you

This case affirms the basic principle that the duty imposed on an occupier of a shopping centre is not to ensure that the floor is free of spillages at all times, but to take reasonable steps to ensure that the floor does not present a foreseeable hazard.

If the cleaning system is found to be adequate, based upon the relevant risks presented, then a breach of duty should not be established. A plaintiff bears the onus to prove any negligence captured by section 5B of the Civil Liability Act 2002 (NSW) – in this case Ms Carnemolla failed to do so.

Carnemolla v Arcadia Funds Management Ltd [2020] NSWCA 308

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